Wednesday, December 17, 2014

In Greater Glasgow Health Board v. Doogan, (UK SC, Dec. 17, 2014), the United Kingdom's Supreme Court gave a narrow interpretation to the conscience clause in Britain's Abortion Act 1967, but left open the question of whether that interpretation violates religious freedom rights or amounts to religious discrimination. Section 4(1) of the Abortion Act provides that, with certain exceptions:

no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection....

In a suit by two Catholic midwives who worked as labor-ward coordinators, the Court held that "participate in" should be read narrowly:

It is unlikely that, in enacting the conscience clause, Parliament had in mind the host of ancillary, administrative and managerial tasks that might be associated with those acts. Parliament will not have had in mind the hospital managers who decide to offer an abortion service, the administrators who decide how best that service can be organised within the hospital..., the caterers who provide the patients with food, and the cleaners who provide them with a safe and hygienic environment. Yet all may be said in some way to be facilitating the carrying out of the treatment involved. The managerial and supervisory tasks carried out by the Labour Ward Co-ordinators are closer to these roles than they are to the role of providing the treatment which brings about the termination of the pregnancy. “Participate” in my view means taking part in a “hands-on” capacity.

However, in an important qualification, the Court said:

So, even if not protected by the conscience clause in section 4, the petitioners may still claim that, either under the Human Rights Act or under the Equality Act, their employers should have made reasonable adjustments to the requirements of the job in order to cater for their religious beliefs. This will, to some extent at least, depend upon issues of practicability which are much better suited to resolution in the employment tribunal proceedings (currently sisted pending the resolution of this case) than in judicial review proceedings such as these.

The Court also issued a press release summarizing the decision, and BBC News reports on the decision. [Thanks to Scott Mange for the lead.]